Many people think that making a Will is a simple exercise and that it is something that you can do for yourself.
With the availability of off-the-shelf Wills, online Wills and post office and DIY Will kits, it would be easy to be lured into thinking that there is nothing much to it. In fact, there are a lot of things that can and do go wrong if not done correctly.
Why should I have a solicitor draft my Will?
There are a number of good reasons to consult a solicitor for advice when making a Will such as:
- A solicitor will be qualified to handle the intricacies involved in making a valid Will.
- A solicitor will ensure that your wishes are properly drafted.
- It is important to have an understanding of whether there are any risks in relation to your Will or estate. A solicitor can advise you in relation to any grounds that may exist to challenge your Will or whether there is the risk of a family provision application.
- A solicitor can advise you in relation to the protection of vulnerable beneficiaries, as well as other planning documents you may wish to put in place, such as an enduring power of attorney.
- A solicitor can also provide you with advice about how to deal with assets that may not pass under your Will, such as jointly held property, superannuation and assets that are held by companies or in family trusts. With superannuation, people who make their own Wills often do not realise that their Will does not govern what happens to their superannuation after they die.
What are the risks if I don’t have a solicitor draft my Will?
If a Will is poorly drafted or not executed properly, there is likely to be additional legal costs.
These costs are likely to outweigh the cost of having a solicitor draft the Will in the first place.
As well as additional expenses, your family is faced with delay and uncertainty as to how your assets will be distributed.
Some of the main problems we see with at home-made Wills and Will kits include the following:
1. Problems with signing and witnessing
Even though Will kits usually contain detailed instructions about how a Will needs to be executed, it is not unusual for these instructions to be overlooked or misinterpreted.
Some examples of situations where problems with signing and witnessing can come up with home-made Wills and Wills kits include the following:
- A Will kit form is filled out but not dated, signed or witnessed properly.
- The Will is signed by the Will maker and two witnesses but there are alterations that have been made to the Will after it was signed and witnessed.
- The Will refers to a list, setting out who is to receive what, but the list has been changed since the Will was made and the list has not been signed and witnessed.
- The Will is signed by the Will maker and two witnesses, but one of the witnesses is a family member who is a beneficiary under the Will.
In all these situations, there will be delay and additional expense which will usually come out of the estate of the deceased person, reducing the amount which can be given to the intended beneficiaries.
2. Problems with identifying who gets what
A solicitor drafting a Will uses language carefully to ensure that the meaning is clear and unambiguous. When someone writes their own Will, they may use language which makes sense to them at the time of writing the Will, but which may be capable of being interpreted in more than one way.
When the wording in a Will is ambiguous, the executor generally has to make an application to the Court to have the Court determine how the Will should be interpreted (this is called a construction application).
3. Problems with failing to give away everything
Another common problem with home-made Wills is that not all the Will maker’s assets are effectively dealt with.
When this happens, the estate or part of it may be dealt with in accordance with the rules of intestacy – which effectively means that the person might as well not have made a Will at all.
A Will prepared by a solicitor will include a residuary clause to ensure that there is no intestacy and will reflect your instructions about who is to benefit if any of your intended beneficiaries die before you
4. Problems with storage and security
Keeping your original Will at home can be risky. As well as the possibility of fire, there is the risk that after your death the Will may be disposed of either accidentally or deliberately.
As part of their service, a solicitor will likely offer to hold your original estate planning documents in their safe custody. Upon your death, your executor can reach out to your solicitor to obtain the original Will and seek advice.
Preparing a Will – not as simple as your think
The law relating to a valid Will is complicated and strict rules apply. While a home-made Will may seem very attractive at their price, it can be a very risky approach.
If errors are made, or if the strict witnessing rules are not followed correctly, the document could be invalid. This results in substantial legal expenses arising – leaving your family with a financial and emotional mess.
If you want to correctly document your intentions and ensure your assets pass in accordance with your wishes, you should obtain the advice of an experienced estate planning lawyer.
Please do not hesitate to contact us if you would like assistance in preparing a legally valid Will and getting your estate planning affairs in order.
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